This matter is before the Court on Defendant United States of America's motion to dismiss pursuant to the Illinois Statute of Repose [12] and on Mount Sinai Hospital Medical Center of Chicago's motion to intervene [19] pursuant to Federal Rule of Civil Procedure 24(b). For the reasons set forth below, the Court grants Defendant United States of America's motion to dismiss [12] and dismisses Counts I-III and V-VII. Count IV ("Survival Action" brought on behalf of the Decedent) remains pending. The Court denies Mount Sinai Hospital Medical Center of Chicago's motion to intervene [19].

I. Background

In essence, the complaint before the Court, brought pursuant to the Federal Tort Claims Act, alleges that between July 2008 and November 2008, employees or agents of the United States rendered negligent prenatal care; Count VI is a claim for funeral expenses; and Count VII is a claim for loss of consortium brought by Paul Moczulewski. In short, all of the claims other than the Count IV survival claim of the decedent are brought by and on behalf of adults.

The procedural history of Plaintiffs' claims is familiar to the Court. Prior to filing the instant complaint, Plaintiff Lori Rice filed a complaint in state court on August 12, 2010. Her state court complaint named several defendants, including Mount Sinai Medical Center, Access Community Health Network ("Access"), Howard Grundy, Charles Lampley, and Melvin Merritt. On March 30, 2011, by certification of the designee of the Attorney General, the United States deemed Access Community Health Network, Howard Grundy, and Charles Lampley to be employees of the United States. Subsequently, on April 4, 2011, the United States removed the state court complaint to federal court and by operation of law was substituted as Defendant in place of Lampley, Grundy, and Access. The United States then moved to dismiss the lawsuit with regard to the United States because Rice had not yet exhausted her administrative remedies. On April 28, 2011, the Court dismissed the United States from the lawsuit and remanded the remaining claims (brought against private parties) to the Circuit Court of Cook County.

After the remand, Rice filed an FTCA claim in June 2011 with the United States Department of Health and Human Services with regard to the acts or omissions of Access, Lampley, and Grundy, as she was permitted to do under 28 U.S.C. § 2679(d)(5). After waiting for more than six months after filing her administrative claim (and thereby exhausting her administrative remedies pursuant to 28 U.S.C. § 2675), [1] on September 30, 2013, Rice filed an amended complaint in her state court case, naming Access, Grundy, and Lampley as defendants, even though the three defendants were already deemed employees of the United States and the United States previously had been substituted for those defendants.

After she filed her amended complaint in state court (adding the federal Defendants), on November 6, 2013, the Department of Health and Human Services denied Rice's administrative claim. In its denial letter, the Department informed Rice that if she was dissatisfied with the determination of the agency she could file suit against the United States in the appropriate federal district court within six months from the date of mailing of the denial. Based on the language in the denial letter, Rice had until May 6, 2014, to file suit against the United States in the appropriate federal district court. 28 U.S.C. § 2401(b).

On November 19, 2013, the United States removed the amended complaint from state court pursuant to 28 U.S.C. § 1442(a)(1) and moved to dismiss the claims against it pursuant to the derivative jurisdiction doctrine. Essentially, the United States argued that because the state court had no jurisdiction over the claims against the federal defendants, the federal court acquires none on removal. In April 2014, this Court concluded that when Rice filed her amended complaint in state court against (effectively) the United States as a defendant (and brought common law negligence theories without invoking the Federal Tort Claims Act), the state court had no jurisdiction over her claims against the federal defendants.[2] And because the state court had no jurisdiction over Rice's amended complaint with regard to her claims against the United States, this Court acquired no jurisdiction upon removal. Accordingly, the Court dismissed Rice's claims against the United States without prejudice and once again remanded the remaining state law claims to the Circuit Court of Cook County.

Prior to dismissal of the removed case, the parties had requested leave to raise an additional issue. Plaintiff was concerned that some parts of a newly-filed complaint in federal district court may be barred by the Illinois statute of repose. However, given the Court's conclusion that the doctrine of derivative jurisdiction applied, the obstacles that could face Rice if she presented a complaint that cleared the FTCA's hurdles were not yet before the Court because she had not yet cleared those hurdles. On May 5, 2014, Plaintiff filed the present FTCA lawsuit, naming the United States as the sole defendant and in effect clearing the hurdles previously noted. However, as predicted, Defendant now contends that the statute of repose for medical malpractice claims has long since lapsed.

II. Analysis

A. Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

The Seventh Circuit has been clear in its assessment of the limitations periods: "[O]n the subject of the statute of limitations * * * * [w]hat a complaint must plead is enough to show that the claim for relief is plausible. Complaints need not anticipate defenses and attempt to defeat them. The period of limitations is an affirmative defense * * * * We have held many times that, because complaints need not anticipate defenses, Rule 12(b)(6) is not designed for motions under Rule 8(c)(1)." Richards v. Mitcheff, 696 F.3d 635, 637-38 (7th Cir. 2012) (internal citations omitted) (reminding judges to "respect the norm that complaints need not anticipate or meet potential affirmative defenses"); see also United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir.2003); United States v. Northern Trust Co., 372 F.3d 886 (7th Cir. 2004); Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899 (7th Cir. 2004). However, despite these admonitions, the Seventh Circuit also consistently has reaffirmed that a plaintiff may plead herself out of court by alleging facts that are sufficient to establish a statute-of-limitations defense. See Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 (7th Cir. 2009) (dismissal is appropriate where it is "clear from the face of the amended complaint that it [was] hopelessly time-barred"); Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir.2008) (stating that "[a] statute of limitations defense, while not normally part of a motion under Rule 12(b)(6), is appropriate where the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations") (internal quotations omitted); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.2d 623, 626 (7th Cir.2003) ("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense"); Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.2004) ("Only when the plaintiff pleads itself out of court-that is, admits all the ingredients of an impenetrable defense-may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6)."); see also Baldwin v. Metro. Water Reclamation Dist. Of Greater Chicago, 2012 WL 5278614, at * 1 ("A plaintiff whose allegations show that there is an airtight defense has pleaded himself out of court, and the judge may dismiss the suit on the pleadings * * *.") (quoting Mitcheff, 696 F.3d at 637).

In the present case, Plaintiffs pled all of the necessary facts to resolve this issue. Where a plaintiff has pled facts which arguably establish an affirmative defense and both sides have briefed the issue, practical considerations-such as discovery costs, attorneys' fees, and judicial efficiency-provide courts with ample reasons to resolve a dispositive point of law early in a case, whether the parties have briefed the question as a 12(b)(6) or a 12(c) issue. In ...

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